Re-launched in April 2010 after 12 months’ absence from the internet, this Legal Commentary on issues affecting Town & Country Planning offers comment on recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It is likely to be of interest mainly to fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.

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Thursday, 21 August 2014

The planning system – the need for a real overhaul

The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

“We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.”

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.

6 comments:

Martin you are of course right. Political meddling is undermining the planning system. The way things are going the barnacles will consume the boat - which may of course be the plan, assuming there is a plan! A comprehensive review is needed but it’s hard to believe the politicians will make the difficult decisions necessary. Even if the system is refreshed the meddling will no doubt begin again. In much the same way as the government has given the Bank of England control of interest rates, control of the planning system needs to be given to a body that is guided by government in terms of the overall goals of planning but autonomous from government in respect of achieving those goals.

my word, a blog post I can actually agree with!I think planning needs a massive make over, I think the idea of national important trumping local objections needs to be made central, and the idea that planning operates in the public interest which is not the same as being response to those that shout loudest. I also think governments need to stay out of planning as much as possible. This coalition has messed around with planning more than most and its just stagnated the sytem. Sure they may have had good intentions, and it all sounds nice on paper, but speaking from an LPA perpective, its bogged down the system and stopped us dealing with matters in a timely manner.Contrary to the impression this blog's author usually gives, LPA planners dont want to stand in the way of development, but we do want high quality development (something developers seam to go out of their way to avoid providing...) and we want to get things delivered asap. I personally feel increasingly frustrated in my ability to do that mainly as a result of constant tinkering with the planning system by politicians who dont really know what they are doing and the unintended consequences (usually easily predictable ones) that results from this.

Not all developers are the same, there are some good and some bad. Not all planning authority planners are the same, likewise some good some bad. Can we get past the bickering please, and address the real problem that none of us can be sure of what we are doing because the system keeps changing all the time

Agreed that the Planning System needs a complete overhaul. I'm rushing from the general to the particular, however I'm very confused over the different wordings provided by the DCLG, the Planning Portal and the 1995 GPDO under Class B -roof extensions. For B1(b) the various wordings are- 1) '...any roof slope which fronts any highway'2)'...beyond ...the slope of the principal elevation and fronts a highway' A principal elevation is explained as understood to be the front of the house. There will only be one principal elevation on a house. Where there are two elevations which may have the character of a principal elevation (for example on a corner plot) a view will need to be taken as to which forms the principal elevation. Therefore if there is a front and a side elevation each fronting a highway but only one elevation is a principal one, then only one of the conditions for refusal of PD rights is met. The wording seems to suggest that both the principal elevation rule and the fronting of a highway rule must both be met for PD rights to be not permitted. Please help!With kind regards

Ann Dunton has identified one of the many anomalies and ambiguities in the GPDO. Confusion reigns, and I am afraid it will continue to do so until someone in DCLG grasps this nettle and re-writes this subordinate legislation in terms which actually make sense.